Our post-war human rights settlement has degenerated. David Cameron must press
for urgent reform of the ECHR, says Blair Gibbs.

The European Court’s ruling blocking the deportation of terror suspect Abu Qatada was another headache for the Home Office, but the timing works in Downing Street’s favour. The Strasbourg judgment is a fitting backdrop for today’s speech by the Prime Minister to the Parliamentary Assembly of the Council of Europe in which he will make the case for human rights reform.

In a prebuttal to the speech, Nicolas Bratza, the President of the European Court, wrote yesterday that UK critics of Strasbourg were ignorant of the Court’s “role and history”. But in seeking to curb Strasbourg’s authority, David Cameron has history on his side.

Since joining the Council of Europe in the 1950s, the UK has been bound by the European Convention on Human Rights. That document and the British law that gives effect to it – the Human Rights Act – is the basis of the rights that residents can exercise in our courts, and at Strasbourg.

But the Cabinet at the time were clear when we signed up that the European Convention, although UK-inspired, was clearly marked “For Export”, not designed for import. It was about bringing the freedoms that we had enjoyed for centuries to all citizens of the continent, to guard against any future descent into tyranny, but we were not giving up the primacy of our own law.

Indeed a Cabinet minute from the time recorded the consensus that “it was intolerable that the code of common law... which had been built up in this country over many years should be made subject to review by an International Court administering no defined system of law.” And yet that is precisely what is happening now with growing regularity, as activist judges in Strasbourg try to import new rights into the United Kingdom.

The irony is that a system established to export established Common Law principles to countries that lacked them, has mutated over half a century into a supranational tribunal that is bringing a new type of jurisprudence back to these shores – often in the face of our own law and customs. The Strasbourg Court today has an inflated authority that no post-war Cabinet ever explicitly agreed to, never mind the British public.

On its agenda as the current Chairman of the Council, the UK wants to improve the workings of the Strasbourg court – to cut the backlog of over 160,000 pending cases – and give our own courts more of a say in deciding human rights cases by refocusing Strasbourg on serious cases. But the process is not where the real problem is.

Just making the Court more efficient without reining it in would only make the situation worse – bringing more conflict between MPs and Strasbourg. If the court is not going to change its ways, it may as well be gummed up.

The fundamental issue at stake is the jurisdiction of the Strasbourg court and the poor quality of its decisions. This judicial activism takes two forms – the creation of novel rights that have nothing to do with basic freedoms, and the inflation of some freedoms to the status of immutable rights that must be protected at all costs, even in foreign jurisdictions.

Few would object to the rights enshrined in the Convention, but those rights must be sensibly interpreted. The most recent novel ruling is votes for prisoners, with Strasbourg demanding that the UK lift its ban on enfranchising criminals. In this case, the right to vote while imprisoned is demonstrably not a human right, as our own Law Lords ruled, and the UK would not be respecting human rights if it complied.

MPs objected to the ruling in a free vote, and the Attorney General intervened personally in an Italian case to restate the UK view. In domestic cases where our own courts rule, Parliament remains supreme and can change the law, but if the judgment comes from Strasbourg, Ministers are bound by treaty to comply even if Parliament objects.

As a result we have now reached constitutional stalemate and many privately accept that the only viable way forward is for the UK to acknowledge the breach, declare itself unable to comply (never mind unwilling), on the grounds that MPs will not let them, pay the fine, and move on. Such rulings expose the democratic flaw in the Convention system that needs fixing.

If the public have lost respect for human rights, it is because human rights appear to have lost respect for the public – siding with the terror suspect against the majority of citizens who have a basic right to security. The Abu Qatada ruling is the fifth time in recent years that our own highest court has been second-guessed by Strasbourg on a national security case.

Each time, Strasbourg makes it harder for the UK by raising the bar – egged on by pressure groups like Liberty who enjoy litigation and have a vested interest in the proliferation of rights. So the Qatada case, for the first time, cited Article 6 and due process to block deportation, against the unanimous view of our most senior judges. There is a limit to how far this can be tolerated by elected politicians who ultimately have to keep people safe.

The rule of law and the role of independent judges in applying it is a key element of any democratic constitution. But judges are there to enforce the law, not to make the law. In a democracy it is the people and their elected representatives who must make the law. If and when judges start making the law by misapplying Convention rights, sovereign states need a mechanism to uphold sanity.

A power of “democratic override” to overturn – in extremis – flawed decisions would help curb the Strasbourg Court’s expansionist jurisprudence and give space for parliaments to determine whether such rulings really do breach fundamental rights as each nation understands them. After all, only the elite human rights industry believes that all Strasbourg rulings are sacrosanct.

If this cannot be achieved, then withdrawal from the jurisdiction of the Court should be seriously considered, because without it there is nothing to stop activist judges in Strasbourg endlessly creating new rights. The effect of that will be to permanently discredit real rights in the eyes of the public.

Prisoner votes and Abu Qatada are two recent judgments that show how our post-war human rights settlement has degenerated. Such rulings erode public support for rights, foster a litigious culture and put judges into the political arena.

A new human rights settlement should accept the new world in which states operate and provide more flexibility, with a mechanism for national parliaments to have the final say. As long as our democratic authority goes on being undermined by Strasbourg in the name of human rights, both democracy and rights lose out.